Blaney v. Cline , 49 Cal. App. 50 ( 1920 )

Motion to dismiss appeal. The notice of motion was served on appellant June 30, 1920, and was heard on July 12, 1920. Attached to the notice is a certificate of the clerk of the superior court stating that the notice of appeal was filed March 3, 1919; that an order granting five days' additional time to prepare a bill of exceptions was filed March 13, 1919; and that no further action was taken.

Counsel for appellant presented an affidavit setting forth that his proposed bill of exceptions, and amendments thereto, suggested by respondent, was filed with the clerk of the court in which the action was tried on April 7, 1919, and that no date has been set by the judge for settling the bill. The affidavit states that at one time affiant appeared in court with Joseph Pacht, who claimed to represent respondent's attorney, and requested the judge to settle the bill, whereupon the court was informed by Pacht that he was going to San Francisco, where respondent's attorney was then living, and would there secure sufficient information upon which to act. On two subsequent occasions affiant communicated with Pacht regarding the matter, and was finally informed that respondent's attorney was expected to return to Los Angeles soon. The affidavit states that respondent's attorney returned to the city several months prior to the filing of the notice of motion, but that affiant was not aware of his return until about June 1, 1920, when affiant met him on the street and requested that he take up the matter in court. This counsel refused to do, informing affiant that he intended to move to dismiss the appeal. No affidavit in opposition to the statements of appellant's attorney was filed.

The ground of the motion is that the appeal has not been perfected by filing the transcript within the time provided by law.

Rule II of the supreme court and district courts of appeal Rules (176 Pac. vii) provides that appellant, within forty days after perfecting his appeal, shall file his transcript, but that if a proceeding for the settlement of a bill of exceptions which may be used in support of the appeal is pending, the time shall not begin to run until the settled and authenticated bill of exceptions has been filed. [1] The record here shows that appellant has complied with the terms of section 650 of the Code of Civil Procedure, by filing with the clerk the proposed bill and amendments, and that the delay in presenting the same to the judge for settlement was occasioned by the absence of respondent's attorney from the county. Counsel for appellant appears to have been reasonably diligent in pressing a hearing on the settlement, having more than once requested action from the other side. It is true that he might have insisted on the settlement of the bill, or compelled the judge to act, by mandate; but under the circumstances of the case we do not deem that he was guilty of negligence in failing to take such steps. As the proceeding for settlement of the bill is still pending in the superior court, the time for filing the transcript has not expired.

Motion denied.

Finlayson, P. J., and Thomas, J., concurred.